Green v Fitzgerald and Others

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes JA, Solomon JA, J De Villiers AJA and Buchanan Acting AJA
• Judgment Date: 19 January 1914
• Court: Appellate Division

Lord De Villiers, C.J.:

The plaintiff in this action is a son of the testatrix by the late Patrick Fitzgerald, and he seeks by his first claim to set aside the bequest of the residue of her estate made by her to the first defendant on the ground that the first defendant is an adulterine son of the testatrix by the late John Green. The second defendant is the executor testamentary of the estate of the testatrix. There is an alternative claim for an order directing the first defendant to carry out a promise alleged to have been made by him to the plaintiff that he would divide the estate of the testatrix equally among all the children of the testatrix, including the defendant himself, which promise is alleged to have been accepted by the plaintiff. The first defendant has pleaded several defences to the plaintiff's claims, but in the view which I take of the case, it will, not be necessary for me to deal fully with any of them except the exceptions to the declaration as disclosing no cause of action.

Lord De Villiers, C.J.

The first plea is that the plaintiff is not entitled to maintain this action on the ground that in a suit brought by the plaintiffs brothers in the Eastern Districts Court against the present defendants, in which the subject matter of the suit was the same, and the claims were the same, the judgment of the Court was for the defendants. There are two fatal objections to this plea of res judicata, namely, that the second defendant was no longer a party to the suit in the Eastern Districts' Court at the time when the case was heard, and that the present plaintiff was never a party to that suit.

The second plea is that of prescription, in regard to which I entirely agree with Mr. Justice SEARLE'S reasons for overruling it. If the action had been in the nature of a querela inofficiosi testamenti, the plea would have been a good one; but the action is not by way of complaint against an undutiful testament by which the plaintiff has been deprived of a portion to which he is of right entitled, but it is an action to set aside a bequest which, it is contended, she was prohibited by law from making.

As to the exceptions to the declaration on the ground that in neither claim it discloses any cause of action, the. Court below overruled the exception as to the first claim, and from that judgment the defendant has appealed. The Court, however, allowed the exception as to the alternative claim, and from that judgment the plaintiff has noted a cross-appeal.

The first exception raises, not for the first time, the important question whether the law of South Africa prohibits the parents of an adulterine child from leaving to such child by will more than is required for its maintenance. The question was answered in the affirmative by the Cape Supreme Court in 1908 in the case of Greenshields v Willenberg (25 S.C.R. 556) and in the negative by the Eastern Districts Local Division in 1911 in the case of Fitzgerald (the present plaintiff's brother) v. Green (1911, E.D.L.D. 432). The first of these cases was decided on the authority of Voet (28, 2, 14) and Van der Linden (1, 9, 4), both of whom fully support the view that children born in incest or adultery can take no more by the will of either parent than their necessary maintenance. In the latter case KOTZÉ, J., pointed out that Voet relies for his statement of the law on passages of the Code (5, 5, 6), and Novels (74, c 6 and 89, c 15), both of which relate only to incestuous children, and, not also to those born in adultery, and one of which is confined to the father and does not extend to the mother

Lord De Villiers, C.J.

of incestuous children. It would serve no useful purpose for me to examine into the true meaning of these passages, because even if, by the light of modern criticism, we are now able to pronounce that the Dutch authorities misinterpreted the passages, we could not on that account alone reject any generally accepted law although founded on such misinterpretation. These passages, however, are important as showing that the Emperor bad no desire to visit the penalty on the offspring of every form of illicit intercourse, but only on the offspring resulting from intercourse which was deemed nefarious and of a criminal nature. Under the later Roman as well as under Dutch law incest was treated as a very heinous crime, and there is much force in Mr. Justice KOTZÉ's contention that when the Emperor Justinian in his Novels used the expression ex nefarii vel incestis vel damnatis complexibus, he referred only to cases of incest and not of adultery also. Re this as it may, the Dutch writers seem to have regarded adultery as a crime not much less heinous than incest, and the majority of them, including Voet and Van der Linden, placed the progeny of both these forms of illicit intercourse on the same footing of disgrace and incapacity. In South Holland, however, the maxim that "a mother procreates no bastard (een wijf maakt geen bastaard)" was Consistently applied, and the right of adulterine children to succeed to the estate of their mother and to benefit under her will was recognised (Van der Keessel, Thes. 345). Now if, in the present case, the testatrix had died intestate, I have no doubt whatever that the defendant would have been entitled to share with the plaintiff and her other children by Fitzgerald in her estate. I have had occasion in the case of Raubenheimer v Executors of Van Breda (Foord 111) to explain how the South Holland law of succession came to depart from that of North Holland, and how by Cape local legislation during the Dutch occupation the main features of the South Holland law of succession were introduced. I find, however, that Mr. Justice WESSELS, in his most interesting history of the Roman-Dutch Law, has expressed serious doubts as to the correctness of my explanation. He observes that the Political Ordinance of 1580 is founded on the law of South Holland, and he seems to admit that if the Charter of 1661 was introduced into the Cape the decision in Raubenheimer's case was correct, but he says (p. 551) that he can find no authority for the statement that the Charter of 1661, which was enacted for the East Indies, ever was made to ap-

Lord De Villiers, C.J.

ply to the Cape. On reference to the Archives, however, it will be found that on the 19th June, 1714, the Council of Policy passed a resolution directing the Orphan Masters to follow Articles 19 to 29 of the Ordinance of 1580, the Declaration of the States General of the 13th May, 1594, and the Charter to the Dutch East India Company, dated the 10th January, 1661. In the following year the Governor and Council passed a Solemn Resolution that the Charter of 1661 was to be part of the law of the land. This resolution was duly signed by the Governor and every member of the Council, and countersigned by the Secretary. The Archives further show that not only was this resolution passed, but the Charter of 1661 was set out word for word and also signed by the Governor and every member of the Council. Moreover, a copy of the Charter, signed by the Secretary, was forwarded to the Orphan Chamber for its guidance in cases of succession ab intestato. These documents ought to remove any doubts which might still exist as to, the Cape law of succession. I must also take exception to Mr. Justice WESSELS' statement (p. 552) that the case of Spies v Spies (2 Menz. 470) decided that the intestate law of the Cape Colony was the law of North Holland, and that it was overruled by Raubenheimer's case. It is true that the headnote to the report of that cage stated that the North Holland law, including the Political Ordinance of 1580 and the interpreting Ordinance of 1594, is the law of the Cape in intestate succession, but the headnote is not supported by the actual decision. Counsel appears to have made the wholly inconsistent admission that by the Placaat of 1661 the law of North Holland, including the Political Ordinance of the 1st April, 1580, and the interpreting Ordinance of the 13th May, 1594, was made the law of this Colony. If these statutes were made law in the Colony it would have been the South rather than the North Holland law which was introduced, and I presume that a printer's mistake was made. Re this as it may, the Court seems to have ignored the admission as to North Holland law, for it based its decision on the 28th section of the Ordinance of 1580, which, as stated by Sir John WESSELS, is founded on the law of South Holland. The present is not a case of intestate succession, but if once it is held that adulterine children are entitled to succeed to the estate of their intestate mother it would be impossible to withhold the right of such children to take the benefit of bequests made to them by their mother. The law of South Holland consis-

Lord De Villiers, C.J.

tently applied the rule that the mother procreates no bastard, and recognised the right of adulterine children in the case of testate as well as intestate succession. The rule appears to me to be based upon sound principles and in the absence of any previous decision to the contrary, I am of opinion that it should be applied in the present case.

I do not wish it to be understood, however, that, in my opinion, so far as the right to bequeath property to his adulterine children is concerned, a father stands on a different footing from a mother. For obvious reasons, the right of illegitimate children to succeed to the estate of their intestate mother is recognised, while their right to succeed to the estate of their father is ignored. That is no reason, however, why a father who feels that he is under a natural obligation to provide for his illegitimate offspring should not fulfil that obligation. The Roman law prevented him from leaving more than one-twelfth of his estate to his natural children if he had any legitimate...